Riepon and Australian Capital Territory

[2021] AATA 1556

Riepon and Australian Capital Territory [2021] AATA 1556 (2 June 2021)

Division:GENERAL DIVISION

File Number(s):2020/1023; 2021/2396      

Re:Lisa Riepon  

APPLICANT

Australian Capital TerritoryAnd  

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:2 June 2021

Place:Canberra

The Tribunal has jurisdiction to address the entirety of Ms Riepon’s compensation claim in application 2020/1023, including in respect of left sciatic lumbar pain.

………………..[sgd]………….….

S. Webb, Member

PRACTICE & PROCEDURE – application for review of reconsideration decision denying liability in respect of a workers’ compensation claim – Tribunal’s jurisdiction - scope of claim – implied rejection – jurisdiction conferred.

Legislation

Administrative Appeals Tribunal Act 1975 ss 25, 37, 43.

Safety, Rehabilitation and Compensation Act 1988 ss 14, 38, 53-54, 60, 62, 64.

Cases

Abrahams v Comcare [2016] FCA 1829

Canute v Comcare [2006] HCA 47

Cheung v Administrative Appeals Tribunal [2009] FCA 241

Comcare v Muir [2016] FCA 346

Commonwealth of Australia v Snell [2019] FCAFC 57

Fuad and Telstra Corporation Ltd [2004] AATA 1182

Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33

Kennedy v Comcare [2014] FCA 82

Lang v Comcare [2007] FCA 47

Less v Comcare [1999] FCA 753

Mununggurr v Comcare [2020] FCA 1786

Phillips v ACT [2021] ACAT 22

Szabo v Comcare [2012] FCAFC 129

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87

Telstra Corporation Ltd v Kotevski [2013] FCA 27

Walters and Comcare (Compensation) [2021] AATA 14

Wuth and Comcare (Compensation) [2020] AATA 3625

REASONS FOR DECISION

Mr S. Webb, Member

2 June 2021

1. Lisa Riepon is an employee of the Australian Capital Territory (ACT). She was recovering from a work injury, using crutches, when she attended a psychologist for treatment. At the entrance to the psychologist’s practice, she fell and landed on her left side. She experienced symptoms of pain and lodged a compensation claim in respect of an injury. The claims manager for the Australian Capital Territory, EML Limited, decided to accept part of the claim relating to a left shoulder injury, but refused the claim relating to left hip pain.[1] This decision was affirmed on reconsideration.[2]

   [1] T29.

   [2] T1.1.

2. Ms Riepon applied for review by the Tribunal under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) – application 2020/1023.

3. In the course of the resulting proceedings, an issue arose in respect of the Tribunal’s jurisdiction. The issue is whether the injury described in the claim form as “Pain in the left hip”[3] sustained at 3.00pm on 25 July 2019 can be properly construed as a claim in respect of “left hip and sciatica symptoms down to her knee”,[4] “left sciatic lumbar pain”[5] or “sciatic pain going down left buttock, left knee and down left leg”.[6] The ACT asserts that the claim should not be construed in this way.

   [3] T24, folio 60.

   [4] T20, folio 48.

   [5] T29, folio 72

   [6] T49, folio 120.

4. I note that Ms Riepon presently has a second application before Tribunal – application 2021/2396. This application has a different ambit than application 2020/1023, albeit that there is some overlap in respect of the injury claimed. The jurisdiction issue arises in application 2020/1023.

5. It is this issue, alone, that is the subject of this decision.

6. The parties were heard on this issue and had opportunity to provide written submissions. Counsel for Ms Riepon, Allan Anforth, made detailed written submissions. The ACT informed the Tribunal no written submissions would be made.

7. Ms Riepon makes two broad submissions. The first is that the ACT, in effect, decided to refuse the claim as broadly construed – it was squarely considered and rejected by the primary decision maker and the reconsideration decision maker. If this is not accepted, the second submission is that the entirety of Ms Riepon’s compensation claim was before the primary and reconsideration decision makers. Each decision maker was on notice of the left sciatic lumbar pain element and had power to determine the entirety of her claim. Failure to do so does not curtail the Tribunal’s jurisdiction to review each of the matters that was before the person who made the reconsideration decision.

8. When deciding such matters, it is necessary to consider the terms of the legislation.

   Legislation

9. The Tribunal does not exercise power at large and, under s 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), has jurisdiction to review certain decisions conferred upon it by legislation . In this case, jurisdiction is conferred by s 64 of the SRC Act for ‘review of a reviewable decision’. Under s 60(1) of the SRC Act a ‘reviewable decision’ is a decision made under s 38(4) or s 62. The latter section, which is presently relevant, provides for ‘reconsideration of a determination’. The word ‘determination’ is given particular meaning in s 60(1) –

   determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.

10. The Full Federal Court in Less v Comcare[7] said of this three-tiered decision-making structure –

    39 In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.

    [7] [1999] FCA 753.

11. Presently, the reviewable decision is a reconsideration of a determination made under s 14 of the SRC Act, which is in the following terms –

    14  Compensation for injuries

    (1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

    (2)  Compensation is not payable in respect of an injury that is intentionally self‑inflicted.

    (3)  Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.

12. Importantly, for compensation to be payable in respect of an injury, notice of the injury must be given under the terms of s 53 of the SRC Act, and a claim for compensation must be made in compliance with the terms of s 54.

13. It is in respect of these requirements, that disputation about the scope of the notice or claim may arise in the context of Tribunal proceedings, as it has in these proceedings. Where it does, it is a matter for the Tribunal to determine the scope of the notice or claim and related jurisdictional issues.

14. The principles that apply to construction of a notice or a claim for the purposes of the SRC Act, and the allowance of “some flexibility in the formulation of a claim”,[8] have been the subject of consideration by the Full Federal Court in Szabo v Comcare[9] and they are not presently controversial. The applicable principles have been accepted to include those summarised by Madgwick J in Abrahams v Comcare[10] at [18] –

    [8] Comcare v Muir [2016] FCA 346 at [13]; Kennedy v Comcare [2014] FCA 82 at [53].

    [9] [2012] FCAFC 129, per Emmett and Greenwood JJ at [33]-[34], per Bennett J at [50].

    [10] [2016] FCA 1829.

    …

    1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.
    
    2. In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.
    
    3. The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given.
    
    4. Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given.
    
    5. There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.

15. As Flick J explained in Comcare v Muir[11] at [15] and [16], where the “dividing line” that should be drawn is not always clear or easily decided and it is in this regard that the adoption of a “broad, generous and practical interpretation” is tempered by the purposes of the statutory requirement for the giving of notice and the making of a claim in respect of an injury.[12] Those purposes are to to enable the decision maker, in this case the ACT, with the aid of the relevant employing agency, to determine whether the claim should be met, and enabling the decision-maker to have a fair opportunity to investigate the claim properly.

    [11] [2016] FCA 346.

    [12] Mununggurr v Comcare [2020] FCA 1786 at [21].

16. Thus, in order to determine the Tribunal’s jurisdiction in this case, it is necessary to consider the notice given of the alleged injury under s 53 of the SRC Act, the claim made in relation to it under s 54, as well as any supporting materials given to the ACT, the determination made in respect of the claim under s 62 and the reconsideration decision under s 64 that is the subject of the application for review.

    Notice of injury

17. Presently, there is no formal notice of the alleged injury in the materials before the Tribunal. Nevertheless, as I have said, the claimed injury is said to have occurred in circumstances where Ms Riepon was recovering from another injury and attending upon a psychologist for treatment. So much is clear from the Workplace Rehabilitation Progress Reports (Reports) on 29 July 2019.[13] These Reports were addressed to the ACT and they arose from meetings involving Ms Riepon’s ACT Government Case Manager. The Reports refer to the circumstances of the claimed injury on 25 July 2019 and subsequent symptoms –

    Ms Riepon reported that she had experienced a fall yesterday when attending the initial counselling appointment with Ms Kerrieanne Phillips, Psychologist. Ms Riepon advised that she had fallen forward through the door landing on her left side, experiencing pain in her left hip and left shoulder.[14]

    Ms Riepon reported experiencing left hip and sciatica symptoms down to her knee.[15]

    [13] T20 and T21.

    [14] T21, folio 55.

    [15] T20, folio 48.

18. I note in passing that the Reports refer to medical certificates issued by Dr Gan, Ms Riepon’s treating general practitioner, including a certificate dated 26 July 2019. This certificate does not appear in the documents given to the Tribunal by the ACT under s 37 of the AAT Act.

19. It is open to infer that the Reports were given to the ACT before 11 August 2019, when Ms Riepon lodged the compensation claim for alleged injuries arising from the fall she sustained on 25 July 2019.

20. The report of the incident in which Ms Riepon fell on 25 July 2019 that is set out in the Reports is sufficient to amount to notice of injury for the purposes of s 53 of the SRC Act.

    Claim

21. Ms Riepon’s compensation claim is at T24.

22. As can be seen, Ms Riepon described the injury claimed in the following manner –

    18. What is/are the injury(ies) you are claiming for?

    Pain in the left shoulder and neck

    Pain in the left hip

    19. What part(s) of your body are affected

    Left Shoulder and neck

    Left Hip

23. On 23 August 2019, Dr Gan issued a medical certificate in which the doctor records to following information –

    23.8.2019, On the 25.7.2019, [Ms Riepon] was none weight bearing and using crutches. Rt Ankle in cast and was using crutches and the front of psychologist office had uneven paving. She was trying to balance and used her left hand to push the door open. It was a heavy door and she lost her balance and fell forward and landed on the ground. [Ms Riepon] injured her left shoulder, left side of neck, left hip and had lower back pain.

    Left shoulder still in pain. The left hip has minor pain after sitting for long. She has 3 episodes when she woke up with sciatic pain going down left buttock, left knee and down left leg. The pain was less after getting out of bed and it lasted 20 mins. The pain was then gone after that. This sciatic pain does not happen all the time. This sciatic pain on the left side was after the fall. In 2017, [Ms Riepon] had right sciatic pain and needed surgery. This left sided sciatic pain only happens after waking up in the morning.

    …

    Part B – Provides additional information for your insurer, if the certificate relates to a claim for compensation

    …

    The injury or disease is:         …

    [X] a new injury/disease left shoulder, left sciatic pain left hip left side of neck after fall on 25.7.2019

24. When these documents are considered together, it can clearly be understood that the ‘pain in the left hip’ to which Ms Riepon referred in the claim form should be construed generously to include left sciatic pain. The word ‘sciatic’ is a descriptor Dr Gan used when describing symptoms Ms Riepon complained of after her fall. It suggests radiating pain as a result of lumbar nerve involvement on the left side. It is a possible diagnostic description or cause of the left hip pain Ms Riepon set out as an injury in the compensation claim form she lodged.

25. Considering these documents, it is not appropriate, and it would be wrong, to distinguish left hip pain from left sciatic pain in the manner for which the ACT contends. Dr Gan’s report of ‘left sciatic pain left hip’ as ‘[t]he injury or disease’ illuminates the ‘left hip pain’ injury Ms Riepon claimed from a medical perspective. It is also consistent with the notice of injury she gave in the Reports, albeit through her Case Manager.

26. The claim Ms Riepon made is to be construed in the context of the notice of injury she gave. When the claim is properly construed, it is quite plain that the injury claimed is left hip pain and left sciatic hip pain, including sciatic pain going down left buttock, left knee and down left leg.

    Determination

27. On 20 September 2019, an EML Senior Case Manager issued a primary determination, accepting Ms Riepon’s compensation claim in respect of her left shoulder and neck (liability was accepted under s 14 of the SRC Act for ‘left shoulder ligament strain and left neck sprain’), and rejecting her claim in respect of a left hip pain.

28. The primary decision-maker stated –

    While I note that Dr Gan has included ‘left sciatic lumbar pain’ in the medical certificate, this was not included in your claim form. I further note that while you have noted on your claim form that you first sought medical treatment on 27 July 2019, the only medical certificate provided in support of your claim is dated 23 August 2019.

    The noted condition of “left hip pain” is a symptom, and not an injury for the purpose of the SRC Act. Therefore, I am not satisfied that you suffered an injury being that of left hip pain and left sciatic lumbar pain arising out of the course of your employment on 25 July 2019.

    I am unable to find that your left sciatic lumbar pain is related to your fall on 25 July 2019 and therefore I find it did not arise out of or in the course of your employment.[16]

    [16] T29, folio 72.

29. It is quite clear that the decision maker squarely considered Dr Gan’s medical certificate when considering Ms Riepon’s claim.

30. The reasoning process underlying the decision to refuse Ms Riepon’s claim, while extremely curtailed, can be seen in the text of the determination: left sciatic lumbar pain was not included in Ms Riepon’s compensation claim form but it was referred to by Dr Gan in a medical certificate; there was a delay between the alleged incident and Dr Gan’s medical certificate (an earlier, more proximate medical certificate had not been provided); left hip pain is a symptom and not an injury (I note this point raises a legal question that is presently contentious in proceedings before the Federal Court in respect of 2 Tribunal decisions[17]); the decision maker could not be satisfied that the left hip pain and left sciatic lumbar pain arose out of or in the course of Ms Riepon’s employment. In the result, the decision maker decided that this aspect of the claim was not made out.

    [17] Walters and Comcare (Compensation) [2021] AATA 14 and Wuth and Comcare (Compensation) [2020] AATA 3625.

31. It is sufficiently clear that the decision maker squarely considered the entirety of Ms Riepon’s claim, including in respect of ‘left sciatic lumbar pain’, and made, finally, a determination.

    Reconsideration decision

32. On 18 February 2020, an EML Reconsiderations Officer issued a reconsideration decision[18] in respect of the 20 September 2019 determination.

    [18] T1.1.  

33. In the text of the reconsideration decision, the decision maker recounted the relevant background and summarised the contents of Ms Riepon’s request for reconsideration.[19] The decision maker set out other materials that were considered, including medical certificates issued by Dr Gan, rehabilitation reports[20] and medical imaging reports. It appears that these materials included an ultrasound scan of Ms Riepon’s left hip on Dr Gan’s referral.[21]

    [19] T1.1, folio 7; see Ms Riepon’s request for reconsideration at T37.

    [20] See T38.

    [21] T31.

34. In this context, the decision maker stated –

    I note that there was not a claim for left sciatic lumbar pain in your original claim form signed 11 August 2019. I am therefore unable to make a determination on this condition.

    The task before me is to decide where you are entitled to compensation for your claimed conditions of ‘left shoulder ligament strain, left neck sprain, left hip ligament strain and left hip trochanteric’.[22]

    [22] T1.1, folio 7.

35. It appears likely that the reconsideration decision maker proceeded to treat possible diagnoses of conditions affecting Ms Riepon’s left hip as elements of her compensation claim.

36. There are three things to say about this.

37. Firstly, ‘left hip ligament strain’ and ‘left hip trochanteric’ are not referred to in the text of Ms Riepon’s claim. These conditions were not raised or considered by the primary decision maker. It is to be noted that the SRC Act allows for progressive decision making,[23] where the facts found by a previous decision maker do not in all circumstances bind a future decision maker.[24] In particular, while the facts found (or matters considered) at the primary determination level may be accepted or revisited on reconsideration, they do not confine the scope of matters that may be considered. The reconsideration decision maker must make the correct or preferable decision on the available materials and, in so doing, may consider medical assessments, investigations and opinions that reflect the present state of medical understanding of the ailment claimed as an injury.[25] Thus, where a fresh diagnosis is evident in materials before a reconsideration decision maker, it may be considered even though it differs from the original diagnosis of the claimed injury. These are factual considerations for the decision maker that may illuminate the nature or contributory causes of the claimed injury.

    [23] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87, per Conti J at [57].

    [24] Commonwealth of Australia v Snell [2019] FCAFC 57 at [60]-[63].

    [25] Cheung v Administrative Appeals Tribunal [2009] FCA 241 at [54].

1. Secondly, when assessing a claim under s 54 of the SRC Act, the primary inquiry is in respect of an ‘injury’ as defined in s 4 and s 5A of the SRC Act. The defined meaning of ‘injury’ is “expressed in terms of the resultant effect of an incident or ailment upon the employee's body”.[26] Where an ‘injury’ is found to exist, the ACT is liable to pay compensation under s 14 of that Act if the ‘the injury results in death, incapacity for work, or impairment’. Within this frame, medical diagnosis serves to assist understanding of the effect of an incident on the claimant’s body when assessing a claim in respect of an ‘injury’. Just as a claim is not confined by a proximate diagnosis, subsequently a different diagnosis does not reformulate the claim.

   [26] Canute v Comcare [2006] HCA 47 at [10].

2. Thirdly, the reconsideration decision maker appears to have treated ‘left sciatic lumbar pain’ in a manner that is not consistent with the way in which the decision maker treated ‘left hip ligament strain’ and ‘left hip trochanteric’. The former condition or symptom was excluded from further consideration for want of an express claim despite express medical reference, whereas the latter conditions were considered on the basis of medical prognostication despite the absence of an express claim. The inconsistency has not been explained by the reconsideration decision maker.

3. The reconsideration decision maker decided to affirm the determination in respect of Ms Riepon’s left shoulder and left neck injuries and, in respect of other components of the claim, stated –

   I have reviewed the evidence on file in regards to yours [sic] claim for ‘left hip ligament strain’. Whilst I am satisfied an incident occurred on 25 July 2019, and that you have suffered symptoms in your left hip, there is insufficient evidence available to support that a physiological change occurred to give rise to an injury such as ‘left hip ligament strain’. The only medical evidence on file to support this claim, is that of the diagnosis your general practitioner has provided on your medical certificates. I note no other documentation has been provided to indicate there is a strain, and alternatively, the other medical evidence, such as the ultrasound referral dated 2 October 2019, is enquiring into whether it is in relation to your ‘left hip trochanteric’.

   In regards to your claim for ‘left hip trochanteric bursitis’, I cannot be satisfied that the mechanism of injury has resulted in this condition. I note that this condition is a form of bursitis, being a degenerative condition that occurs over time and is not typically the result of a frank incident. You were referred for an ultrasound and celestone injection for your left hip on 2 October 2019. I do not have the imaging, or outcome of this imaging and injection for my review. As such, with regard to the available evidence on file, I am not satisfied the condition of ‘left hip trochanteric’ has arisen out of, or in the course of your employment, under the provisions of s 6 of the SRC Act.[27]

   [27] Ibid, folio 9.

4. As can be seen, the reconsideration decision maker considered Dr Gan’s medical certificates and other medical materials when reconsidering Ms Riepon’s claim. The decision maker excluded ‘left sciatic lumbar pain’ from the claim and considered other possible diagnoses, including ‘left hip ligament strain’ and ‘left hip trochanteric bursitis’.

5. In the circumstances, it is plain enough that the reconsideration decision maker had power to reconsider each and every matter raised by Ms Riepon’s compensation claim that was before the person who made the primary determination, however diagnosed. The claim in respect of ‘left sciatic lumbar pain’ is one of those matters. The reconsideration decision maker’s assessment that this was not the subject of a claim is not consistent with a proper assessment of the matters contained within the notice Ms Riepon gave and the claim she made in respect of the injury.

   Tribunal jurisdiction

6. Whatever the primary and reconsideration decision makers made of the contents of Ms Riepon’s claim, the terms of the primary decision maker’s determination are plain enough – the claim in respect of left hip pain and left sciatic lumbar pain was not made out and it was refused. The person who made the reconsideration decision had more materials to consider and found that -

   (a)no claim had been made in respect of left sciatic lumbar pain;

   (b)a claim had been made in respect of left hip ligament strain;

   (c)this claim was diagnosed by a medical practitioner but without other supporting medical evidence – the medical evidence was insufficient to establish that a physiological change had occurred;

   (d)a claim had been made in respect of left hip trochanteric or left hip trochanteric bursitis; and

   (e)this claim relates to a condition that the decision maker thought is usually degenerative and not related to a frank incident, and it was not supported by medical imaging;

   (f)the available evidence did not establish that the condition arose out of, or in the course of, Ms Riepon’s employment.

7. Even though there may be grounds for criticism of this decision, it is clear enough that the reconsideration decision maker was trying to grapple with the merits of Ms Riepon’s claim in respect of left hip pain. Even though this decision maker decided there was no claim made in respect of left sciatic lumbar pain, that matter was squarely decided in the primary determination and, consequently, it was before the reconsideration decision maker. The fact that the reconsideration decision maker did not substantively address this aspect of Ms Riepon’s claim does not meant that there was no power to do so. I am satisfied that it was open for the reconsideration decision maker to address this aspect of the primary determination and the claim made, in its entirety, by Ms Riepon. The failure to deal with this issue amounts to an implied rejection of this aspect of her claim.[28]

   [28] Fuad and Telstra Corporation Ltd [2004] AATA 1182 per Downes J at [5]; Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33 at [22].

8. The failure of the reconsideration decision to deal with the left sciatic lumbar pain component of Ms Riepon’s claim when that matter had been determined by primary determination, and it was squarely raised in Ms Riepon’s request for reconsideration, is not the end of the matter. Under s 43(2) of the AAT Act, the Tribunal exercises all of the powers and discretions conferred upon the reconsideration decision maker for the purposes of reviewing the reconsideration decision. Matters that were capable of being decided by the reconsideration decision maker, whether or not these were expressly or impliedly dealt with, are matters within the Tribunal’s jurisdiction on review.

9. From this it follows that the Tribunal has jurisdiction to address the entirety of Ms Riepon’s claim, including the claim in respect of ‘left sciatic pain’ or ‘left sciatic lumbar pain’ that was expressly dealt with in the primary determination and impliedly dealt with, albeit by incorrect construction of her claim and implied refusal, in the reconsideration decision.

   Other matters

10. In submissions, Ms Riepon has asked the Tribunal to exercise its normative role in respect of defective administration. She refers to a recent case heard by the ACT Civil and Administrative Tribunal – Phillips v ACT (Phillips).[29]

    [29] [2021] ACAT 22.

11. The Phillips case is clearly distinguished on its facts.

12. Nevertheless, in addressing Ms Riepon’s submission, it is appropriate to make the following observations.

13. Firstly, it is quite clear that Ms Riepon gave notice of the fall she sustained on 25 July 2019, when she met with her case manager and others on 26 July 2019. The details she provided are recorded in the Reports on 29 July 2019. The text of those Reports include references to left hip pain and left sciatic pain in her left leg. This is consistent with the medical certificate Dr Gan issued on 23 August 2019. These materials provide insight to the injury Ms Riepon claimed, perhaps imprecisely, in respect of pain in her left hip. Her claim is to be understood in the context of the notice of injury she gave and the medical certificate of her treating doctor. Any perceived inadequacy of diagnosis or asserted insufficiency of medical investigations does not go to the scope of the claim made; those are considerations that may go to progressive assessment of the claim.

14. Secondly, it may be expected that a claimant might use imprecise language to describe symptoms experienced when describing an injury in a compensation claim form or in the terms of notice given in relation to it. It is for this reason that a medical certificate from a legally qualified medical practitioner is required to accompany a claim. It is not appropriate for a compensation claim to be construed so narrowly to exclude the contents of the notice given in respect of the subject injury and the medical certificate of the claimant’s treating doctor. In Lang v Comcare[30], Stone J accepted that “the injury must be the injury as identified by the notice and claim” and, citing Whitlam J in Frosch v Comcare[31], “the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment”.

    [30] [2007] FCA 47.

    [31] [2004] FCA 1642 at [8].

15. Thirdly, within the three-tiered decision making framework the SRC Act provides, as a matter of underlying principle, each decision maker is “bound to consider the relevant facts proved on the evidence before it and to decide on the basis of those facts what was the correct or preferable decision”.[32] Where materials of relevance to a claim are provided to the ACT, the decision maker should consider them when determining (or reconsidering) a claim.[33] In this case, I am not satisfied that the primary decision maker failed to do so – she considered the medical certificate, at least, and decided it was not a sufficient basis to make a positive determination of that aspect of Ms Riepon’s claim. The reconsideration decision, however, appears to have adopted an unduly narrow construction of the claim and then proceeded to reconsider the claim in terms of possible diagnoses or conditions derived from some of the materials provided to the ACT subsequent to the primary determination. This suggests the reconsideration decision maker may have misunderstood the legislative provisions relating to the giving of notice and the making of a claim, as well as the legal thresholds that are to be applied when construing a claim.

    [32] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 at [50] citing French J in Federal Commission of Taxation v Swift and Others [1989] FCA 413 at [21].

    [33] Telstra Corporation Ltd v Kotevski [2013] FCA 27 at [44].

16. Fourthly, it is not necessary, although it may assist proper determination, for a compensation claim in respect of an injury to set out a medical assessment or diagnosis of the injury. The terms of s 53 and s 54 of the SRC Act require notice to be given and a claim made as soon as possible after the injury. In those circumstances, it is a matter of practical reality, that notice of an injury may be given and a claim made before detailed medical investigations have been undertaken. It is not difficult to conceive of circumstances in which a person might fall and experience painful symptoms that cannot be explained without detailed medical investigation. It is reasonable to expect that, in order to determine a claim made in respect of such symptoms, medical investigations would be undertaken. While a claimant clearly bears some responsibility to provide sufficient medical materials in support of a claim to enable a positive determination, such as a medical certificate at least, so too does the ACT (or any other licensee) bear responsibility to properly investigate and determine claims made under the scheme for compensation the SRC Act provides on the merits.

17. Fifthly, the proposition that left hip pain is a symptom may be correct, but it does not follow that it cannot amount to or indicate the existence of an injury. It is necessary to consider the cause of the pain and, where this is not known or fully diagnosed on investigation, or where it amounts to no more than a subjective complaint without apparent cause or any ascertainable ailment, impairment or physiological change, then it there is a question whether the claim can be met. Ms Riepon’s claim of ‘left hip pain’ as an injury requires each decision maker to consider the available materials and to determine if the pain amounts to an ‘injury’ as defined in s 4 and s 5A of the SRC Act.

18. While there may be valid bases on which to criticise the content of decisions made at the primary and reconsideration levels in Ms Riepon’s case, and I note particular concerns about the contents of the reconsideration decision, to my mind, these are not sufficient to justify referral of this matter to the Safety, Rehabilitation and Compensation Commission or to the ACT Attorney General, as requested.

    Decision

19. The Tribunal has jurisdiction to address the entirety of Ms Riepon’s claim in application 2020/1023, including the claim in respect of left sciatic lumbar pain.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of S. Webb, Member.

.................................[sgd].....................................

Associate

Dated: 2 June 2021

Date final submissions received:	1 April 2021
Applicant:	Mr David Healey, David Healey Solicitors
Counsel for the Applicant:	Mr Allan Anforth
Solicitor for Respondent:	Ms Allison Mills
Counsel for the Respondent:	Ms Prue Bindon